• Human Rights Watch notes lack of accountability for rights’ deprivations and violations and non-implementation of recommendations made in previous 2017 UPR cycle 

BY Sumudu Chamara Sri Lanka’s history of safeguarding human and fundamental rights is debatable, and both local and international bodies have raised concerns about it. On the one hand, there are countless rights’ violations-related allegations against the country and its rulers, while on the other hand, the country has not adequately fulfilled its international commitments pertaining to human rights. In addition to the three-decade war between the Government-led defence forces and the Liberation Tigers of Tamil Eelam (LTTE), the failure of successive governments to properly investigate rights’ violations in accordance with international commitments is a major concern. Recently, international human rights monitor, Human Rights Watch (HRW), presented its submission to the Universal Periodic Review (UPR) of Sri Lanka for July 2022, putting forward a number of recommendations for the Government of Sri Lanka (GoSL) to implement to ensure and improve certain rights of citizens and to redress various abuses and human rights violations. The UPR process involves a periodic review of the human rights records of all 193 UN Member States and is a significant innovation of the Human Rights Council which is based on equal treatment for all countries. Providing information regarding Sri Lanka’s implementation of recommendations accepted through its third UPR in 2017, the HRW mentioned information about additional international obligations and issues not addressed in the 2017 review.  It noted that after Gotabaya Rajapaksa was elected as President in 2019, Sri Lanka’s human rights situation has worsened considerably, and that the Government has blocked investigations and prosecutions in human rights-related cases while failing to reform abusive laws. The GoSL, the HRW observed, has taken no substantive action to eradicate torture or to seek accountability for perpetrators of abuse. Economic and social rights With regard to economic and social rights, noting that the current economic crisis became acute in early 2022, the HRW said that according to a 9 June appeal by the United Nations (UN), nearly 22% of the population now needs “food assistance”. Access to healthcare and education is also in jeopardy for millions, it noted. It also noted Sri Lanka’s massive defence budget: “In the Government’s Appropriation Bill for 2022, the Defence Ministry received the highest allocation at Rs. 373 billion (worth $ 1.86 billion at that time), an increase from the previous year, reaching 15% of the total expenditure. The military is also engaged in commercial activities. By contrast, the Health Ministry was allocated Rs. 158 billion ($ 790 million at the time), a decrease of Rs. 871 million from the previous year despite the Covid-19 pandemic.” It was noted that even though Sri Lanka accepted a recommendation “to end military involvement in commercial and other civilian activities” in the previous UPR cycle, the Government has not implemented that recommendation. “Government security forces have used excessive force to suppress protests arising from the economic crisis. As UN High Commissioner for Human Rights Michelle Bachelet said in May, to resolve the crisis, the Government should ‘address the broader political and systemic root causes that have long perpetuated discrimination and undermined human rights’.” With regard to economic and social rights, the HRW said that Sri Lanka should expand social protection programmes to protect everyone’s rights amidst the effects of the economic crisis; increase women’s access to employment by reducing barriers, including by providing State-funded maternity leave and access to affordable menstrual hygiene; restore the independence of institutions including the Judiciary, the Auditor General, the Attorney General (AG), and the Commission to Investigate into Allegations of Bribery or Corruption (CIABOC); and to conduct independent and impartial investigations into allegations of corruption and appropriately prosecute those responsible. With regard to the defence budget, it recommended requiring the auditing of the Defence Ministry to meet the same criteria as other Government departments; end audit exemptions for “secret services” that can be used to obscure the use of public funds; and implement the recommendation to end the military’s commercial activities. Accountability for past abuses Human rights violations, particularly those alleged to have been committed during the war, was a major concern pointed out by the HRW.  It noted, at its third-cycle review, that although Sri Lanka had accepted numerous recommendations on accountability for violations committed during the civil war and its’ aftermath and agreed to implement commitments made under the 2015 UN Human Rights Council (HRC) Resolution 30/1, these recommendations have not been implemented. The fact that the Government repudiated its’ commitments under 30/1 in 2020, and the then-Foreign Affairs Minister reiterated the Government’s opposition to Resolution 46/1 on 13 June 2022, were also highlighted in the submission. Another matter of concern with regard to accountability was the three-member Commission of Inquiry to Investigate Allegations of Political Victimisation appointed in 2020. The HRW said that the commission blocked investigations and prosecutions in emblematic human rights-related cases pursued under the previous Government, overturned one murder conviction, reinstated security forces members disciplined for serious misconduct, and sought to protect Rajapaksa family members and others from investigations into fraud and money laundering. “During hearings throughout 2020, the commission impeded or prejudiced legal proceedings, leading the AG to repeatedly accuse it of exceeding its authority,” the HRW noted. With regard to recommendations Sri Lanka had accepted in relation to enforced disappearances and the Office on Missing Persons (OMP), the submission read: “The OMP has failed to investigate cases or gain the confidence of victims’ families. Gotabaya Rajapaksa’s appointments to the OMP, including former Chair of the ‘Political Victimisation’ Commission Upali Abeyratne, and former Policeman Jayantha Wickramaratne – the latter who was accused of destroying evidence in the murder of editor Lasantha Wickrematunge – further undermined its credibility and independence. According to Bachelet, the policy of the OMP ‘seems to be aimed at reducing the case load and closing files rather than a comprehensive approach to establish the truth and ensure justice and redress to the families’.” Gotabaya Rajapaksa granting a presidential pardon to former Army Staff Sergeant Sunil Ratnayake and former Parliamentarian Duminda Silva, both of whom had been sentenced to death, and the Batticaloa High Court releasing Sivanesathurai Chandrakanthan (alias Pillayan) and four other suspects in the 2005 murder of an Opposition MP after the AG dropped charges, were also matters that the HRW had mentioned in its submission. In regard to accountability for past abuses, the HRW said that Sri Lanka should support the UNHRC Resolution 46/1, to cease all attempts to obstruct or delay domestic investigations and prosecutions of human rights-related cases; empower the Police and courts to pursue credible and independent inquiries into past human rights abuses and conduct trials according to international standards; suspend from military service and remove from public office any serving or retired military officer credibly implicated in serious human rights violations; and establish a credible mechanism to investigate cases of enforced disappearance and provide case information and appropriate compensation to the families of the victims. Women and girl’s rights Sri Lanka’s failure to implement recommendations accepted in the third UPR cycle with regard to the rights of women and girls was also noted in the HRW’s submission. These recommendations included adopting a comprehensive policy to address discrimination, ending discriminatory legal provisions, and implementing measures to address gender and sexuality-based violence.  It added: “The Health Ministry claimed that violence against women and children increased during the Covid-19 pandemic, but acknowledged that available data were likely an undercount because ‘most cases are not reported’. Section 363 of the Penal Code excludes marital rape from the crime of rape unless the couple are ‘judicially separated’. Police generally fail to respond adequately to cases of domestic violence. The Police Spokesman reportedly told a television talk show in August, 2021, that the Police would not pursue cases of threats or assault against a woman by her husband. The 1951 Muslim Marriage and Divorce Act (MMDA) contains numerous abusive provisions. It allows child marriage at any age. Furthermore, Section 363 of the Penal Code specifically permits what would otherwise constitute statutory rape, in cases of child marriage permitted under the MMDA. Under the MMDA, only men can be judges of Qazi Courts. The MMDA does not require a woman’s consent to be recorded before the registration of any marriage under the Act, requiring only that the groom and the bride’s wali (guardian) make written declarations. The MMDA permits a man to have up to four wives, and also provides discriminatory procedures for divorce that place greater burdens on women.”  The submission further noted that even though the Cabinet of Ministers approved reforms to the MMDA – reportedly to make 18 years the minimum age for marriage, ensure that women sign their marriage certificates, ban polygamy, and end the system of appointing only male Qazi judges – which were welcomed by Muslim women activists, they were not presented to the Parliament. In addition, it was pointed out that even though then-Justice Minister M.U.M. Ali Sabry PC, called for the Parliament to consider legalising abortion in cases of rape and the Law Commission of Sri Lanka made a similar proposal in 2013, successive governments have failed to bring new legislation in that regard. To ensure the rights of women and girls, the HRW said that Sri Lanka should set the minimum age of marriage at 18 years with no exceptions; remove all marital rape exceptions from laws criminalising rape; require the Police to investigate and appropriately prosecute acts of gender-based violence, including against a woman by her husband; amend the MMDA to remove abusive and discriminatory provisions; provide comprehensive services to protect women experiencing or at risk of gender-based violence; legalise abortion in all circumstances; and ratify the International Labour Organisation’s Convention on Violence and Harassment at Work (ILO Convention Number 190).  Right to life, arbitrary detention, and torture In the third UPR cycle, Sri Lanka had accepted at least 15 recommendations relating to arbitrary detention and torture, although no substantive action has been taken to eradicate or seek accountability for perpetrators of cases pertaining to the right to life, arbitrary detention, and torture.  The submission also mentioned several recent custodial deaths: “In 2021, the Police were implicated in several unlawful deaths, including of three men whose deaths in May and June were linked to the disproportionate and abusive enforcement of measures to control the spread of Covid-19, as well as in cases linked to an abusive anti-drugs policy. Among these killings, the Police fatally shot Melon Mabula on 11 May, and Tharaka Perera Wijesekera on 12 May. Both were in Police custody for alleged involvement in organised crime. In a statement, the Bar Association of Sri Lanka (BASL) said that both cases ‘have all the hallmarks of extra-judicial killings’. None of these cases is known to have led to the prosecution of anyone allegedly responsible.” Adding that Gotabaya Rajapaksa established a task force of senior military and Police officers in 2020 to create a “disciplined, virtuous, and lawful society” and placed the Police and the National Dangerous Drugs Control Board (NDDCB) under the Defence Ministry, the HRW also said that the Police crackdown on alleged drug dealers and users has resulted in torture and other ill treatment in Police custody or at “rehabilitation” centres, and invasive body searches of female suspects. “People accused of using drugs can be arbitrarily detained without charge or trial for ‘rehabilitation’ in facilities run by the Army. A study by Harm Reduction International found that the treatment of inmates in Sri Lanka’s ‘rehabilitation’ centres includes near daily beatings and other physical abuse amounting to torture,” it was further noted. The HRW submission said that in this context, Sri Lanka should investigate and appropriately prosecute allegations of torture and other ill treatment and extra-judicial killings by the Police; end the involvement of the military in drug prevention and drug treatment activities; take immediate steps to close compulsory drug rehabilitation centres and implement voluntary and evidence- and health-based treatment; decriminalise drug use and possession for personal use; and abolish the death penalty. Sexual orientation and gender identity The rights of those identifying with diverse sexual orientations and/or gender identities were also a matter of concern that the HRW submission discussed. In a context where same sex conduct, including between women, is criminalised in Sri Lanka, the Police use the 1841 Vagrants Ordinance to harass and detain transgender people, and Sri Lanka had previously rejected recommendations on these issues. The HRW said that Sri Lanka should repeal Sections 365 and 365A of the Penal Code to end the criminalisation of same sex conduct, and to repeal the Vagrancy Ordinance. Counterterrorism legislation With regard to the controversial Prevention of Terrorism (Temporary Provisions) Act (PTA), which has enabled arbitrary detention and torture, the HRW said that in the previous cycle, Sri Lanka had accepted recommendations to review counterterrorism legislation or to enact new legislation, but “noted” recommendations to repeal the PTA. The submission recalled that in the aftermath of the 2019 Easter Sunday bombings, the authorities arbitrarily arrested and detained hundreds of Muslims under counterterrorism and emergency laws, and that the Rajapaksa administration has used the PTA to target perceived political opponents and members of the minority Tamil and Muslim communities. “The Human Rights Commission of Sri Lanka (HRCSL) recorded 109 arrests under the PTA in 2021,” the HRW pointed out.  It further said that although the Government amended the PTA in March, 2022, stating that this would address abuses under the law until new legislation could be brought, as amended, the PTA does not meet any of the five “necessary prerequisites” described by seven UN special rapporteurs to comply with international human rights standards. In this regard, it is recommended that Sri Lanka formally announce a moratorium on the use of the PTA until rights’-respecting counterterrorism legislation is enacted. Discrimination against minorities The submission noted that Sri Lanka had previously accepted 18 recommendations related to non-discrimination against minorities, although since Rajapaksa’s election, the Government has repeatedly attacked the rights of minorities. It explained that in March, 2020, the Government published guidelines requiring that the remains of all people who had died from Covid-19 be cremated, which is against the Islamic tradition, and that senior Government figures made public remarks associating the Muslim community with the Covid-19 infection. It was further said in the submission that while the Government took no action against those inciting violence and discrimination against minorities, it repeatedly used Sri Lanka’s 2007 International Covenant on Civil and Political Rights (ICCPR) Act to target members of minority communities, accusing them of “advocating national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence”. It added: “Christian congregations are subject to violence and intimidation, in which the Police and Government officials are allegedly complicit. Police and military personnel were allegedly complicit in allowing Buddhists to build religious structures on Hindu sites. The Government has repeatedly attempted to prevent Tamils from commemorating or memorialising members of their community killed during the civil war.” The recommendations presented in this regard are amending the ICCPR Act to prevent its abuse in prosecuting members of ethnic and religious minorities for speech that is protected under international human rights law; undertaking to combat speech that incites violence, discrimination, or hostility against minorities; ending baseless restrictions on burial practices; and allowing members of the Tamil community to freely commemorate and memorialise victims of the civil war. Freedoms of expression and peaceful assembly Regarding the freedoms of expression and peaceful assembly, the HRW submission noted that restrictions on the freedoms of expression and peaceful assembly have sharply increased under the Rajapaksa administration. “The media increasingly self-censor, and some journalists have left the country fearing reprisals. Investigations into the killings of at least 19 journalists have not led to prosecutions,” it added, while pointing out that the security forces have carried out intense surveillance and the harassment of families of victims of enforced disappearance, as well as non-Governmental organisation (NGO) staff and human rights defenders, especially in the North and the East”. The submission also described that the Government has repeatedly sought to suppress peaceful protests – some examples being: the authorities obtaining court orders banning events and deploying the Police to disrupt a five-day protest march by Tamil political parties and civil society in February, 2021; trade unionists, activists, and teachers being arrested during a peaceful protest in Colombo and detained at quarantine facilities after being granted bail by a Magistrate in July 2021; the Police firing on protestors demonstrating against rising fuel prices in Rambukkana, killing one and wounding at least 14; and several hundred supporters of former Prime Minister Mahinda Rajapaksa attacking anti-Government protestors in Colombo. The submission recommended that Sri Lanka stop using security and intelligence agencies to intimidate and suppress civil society activists and organisations; end policies preventing civil society organisations from accessing legitimate sources of funding; allow peaceful protests; and investigate and prosecute as appropriate, officers responsible for the excessive use of force or other abuses against protestors. One thing that is common about all of the above-mentioned human rights-related matters is that most of them are not new issues, and that Sri Lanka has failed to address or at least properly discuss them despite these issues having existed and worsened for years or decades. At the same time, it is noteworthy that even the reforms that have been initiated, such as those relating to the PTA, have not achieved results acceptable within international human rights frameworks. In a context where Sri Lanka’s human rights record has played a major role in how the international community views Sri Lanka, at a time when the country is desperately in need of external support, the country’s human rights situation should not be underestimated.